Without shield law, federal courts consider value of classified leaks

The prosecution of former CIA agent Jeffrey Sterling, accused of leaking classified information, took a peculiar turn when the legal team of The New York Times journalist James Risen invited the court to distinguish between a “good” and “bad” release of government secrets.

Observers of the case are closely watching the government’s now years-long attempt to force open the names of Risen’s confidential sources in court. Chapter 9 of Risen’s book "State of War" describes a reportedly bungled, and classified, attempt by the CIA to pass bogus design blueprints to Iran's government in order to undermine its nuclear weapons program.

A Feb. 14 filing by Risen’s lawyers [PDF] suggested the courts could carry out a case-by-case public interest analysis to determine whether a leak of classified information was “good” for the public interest or “bad” by causing harm to it – in other words, newsworthy. The filing acknowledges that a lower court was reluctant to be in the “awkward position of having to weigh the newsworthiness of various stories.”

Lawyers for Risen argue that the value of his reporting on national security outweighs any alleged harm generated by its publication. But could it set a dangerous precedent to have courts attempt such a distinction? Couldn’t judges find that any leak of classified information harms the public interest simply by subverting the nation’s secrecy system, and therefore, any journalist can be compelled to testify?

“In the absence of anything else, better a balancing test than no protection at all,” said Peter Scheer, executive director of the First Amendment Coalition in San Rafael. “What journalists need more generally is a privilege that isn’t subject to being balanced away.”

The coalition joined several news organizations in filing a friend of the court brief [PDF] last month that defended Risen and pointed to a history replete with stories that helped expose government waste, fraud and abuse but relied on confidential sources. The Sacramento-based McClatchy Co., owner of The Sacramento Bee, The Fresno Bee and The Modesto Bee, among others, signed on to the brief.

Government secrecy expert Steven Aftergood of the Federation of American Scientists said lawyers for Risen might be trying to hedge against a worse outcome by offering the idea of a newsworthiness test.

“It would not be perfectly satisfactory and would generate a new kind of uncertainty,” Aftergood said. “But it almost certainly would be preferable to a ruling that no reporter’s privilege exists.”

Prosecutors accuse Sterling of being the source for information about Operation Merlin, which Risen’s lawyers say was “deeply flawed and mismanaged” and involved a Russian scientist being enlisted by the CIA to get the fake blueprints into Iranian hands. The case has been largely stalled by a number of pretrial appeals.

“Mr. Risen knew about most of the information reported in chapter nine, including Operation Merlin, as early as 2003, but held the story for three years, until it became clear to him that the competence of intelligence operations concerning Iran’s nuclear capabilities was something the public needed to examine,” his lawyers wrote in the Feb. 14 filing, “particularly in the wake of intelligence shortcomings in Iraq and the failure of the press to expose them.”

While 40 states have some type of law recognizing a reporter’s privilege, there is no federal equivalent that protects journalists from having to give up the names of confidential sources. Beyond the standard assertion that journalists can’t effectively carry out their watchdog role without being able to promise such confidentiality, Risen’s lawyers are relying on what they say is “well-established” case law that supports a First Amendment privilege shielding journalists.

A lower court ruled last year that Risen’s testimony wasn’t necessary because other evidence was available to pursue a leak case against Sterling. The government still wants Risen to testify and argues that there is no special privilege in criminal trials guarding journalists from being subpoenaed. Prosecutors also didn't look fondly on the notion of a newsworthiness test, according to a Feb. 28 filing [PDF]:

“Contrary to Risen’s claim, the ‘newsworthiness’ of the information has no bearing on whether he should be required to disclose his source. … The ‘newsworthiness’ of the information is irrelevant to whether Sterling committed a crime, and it is irrelevant to whether Risen, like any other citizen, must testify concerning his knowledge of that crime.”